Civil judgment of Zhongshan Intermediate People's Court, Guangdong Province

    Zhongshan Intermediate People's Court of Guangdong Province

    Written judgment of civil affairs

    (2017) No. 5809, Minzhong of Guangdong 20

    Appellant (defendant in the first instance) : Guangdong Opai Technology Co., LTD., No.313 6-3, 22 Licitang Road, Shangjia, Ronggui Street, Shunde District, Foshan City, Guangdong Province.

    Legal representative: Li Xingwen, manager of the company.

    Agent AD litem: Liang Zhengping, lawyer of Guangdong Bodao Jujia Law Firm.

    Appelee (plaintiff in the first instance) : Opai Furniture Group Co., LTD., No. 366, Guanghua 3rd Road, Baiyun District, Guangzhou city, Guangdong Province.

    Legal representative: Yao Liangsong, chairman of the Board.

    Attorney: Zhai Mingyue, lawyer of Shandong Changping Law Firm.

    Agent AD litem: Wang Ning, lawyer of Shandong Changping Law Firm.

    Original defendant: Zhongshan Apuda Electric Appliance Co., LTD., one of the 2nd floors, No. 41 Xingchang East Road, Jichang Village, Dongfeng Town, Zhongshan City, Guangdong Province.

    Legal representative: Wang Fan.

    Appellant, guangdong European science and technology co., LTD. (hereinafter referred to as the European technology companies) with the appellee opie household group co., LTD. (hereinafter referred to as the company), the original defendant zhongshan's da electric appliance co., LTD. (hereinafter referred to as "love at company) dispute case of unfair competition, refuses to accept the second (2016) of the people's court of zhongshan city, guangdong province, guangdong 2072 no. 5947 in the early days of the civil judgment, to file an appeal. After accepting the case on October 25, 2017, the court formed a collegial panel in accordance with the law and decided not to hold a hearing after reviewing papers, investigating and questioning the parties concerned. The case is now closed.

    Opai Technology appeals: the original judgment is annulled, and all the claims of Opai technology are rejected according to law. Facts and Reasons: I. The court of first instance found that Opie Technology, Epda and Opie constituted unfair competition, which was wrong. 1. The court of first instance wrongly concluded that Opai Technology, Epda and Opai had a competitive relationship with each other. The original judgment that the company's industry is the ambry of 20 class household industry, not 11 class household electrical appliance industry, at the same time, the original judgment and that love company, European science and technology company's business scope includes home appliances, and the company a competitive relationship between each other, the two decided that apparent inconsistencies and completely wrong. The previous identification has clearly stated that Opai is engaged in the industry of cabinet and other products of category 20, and it is not engaged in the home appliance industry. The subsequent identification also holds that opai has a competitive relationship with the home appliance industry of Opai Technology Company and Epda Company. Therefore, the above determination of the court of first instance is contradictory and wrong, and the two parties do not constitute unfair competition. 2. Opie is not well-known enough to prohibit the use of the name of the accused company of Opie Technology on the accused product. It can be clearly seen from the popularity evidence of Opai listed in the original judgment that all the evidence of Opai are cabinet, sideboard and other furniture industries, and its popularity is limited to the popularity of the above industries. European companies name and trademark in household electrical appliances product for not involved with the actual use and the actual promotion, consequently higher on the product and industry has not formed and only point to the profile of did not reach anti-unfair competition law and relevant judicial interpretations of the requested absolutely prohibit others to use high visibility and the corresponding degree, not enough to ban of the use of the enterprise name. 3. The judgment of the first instance concluded that the use of the name of the accused enterprise was liable to cause confusion and misidentification of the product source by the relevant public. In this case, the company did not submit any evidence to prove that the alleged enterprise name in be used actually caused any confusion and mistakes of the relevant public, the original sentence is considered only as imagined, and without any real evidence to prove that the alleged enterprise name is really "is mistakenly thought is the goods of others", therefore, the enterprise name of the defendant did not violate paragraph 3 of article 5 of the anti-unfair competition law, the original judgment, the identification is the European companies rights to expand protection error. 4. The original judgment found that Opie technology and Epda had taken the market share of Opie by mistake. In this case, the company did not submit any proof of European technology companies and love company preempted the European company's market share, and the company's product is 20 class cabinets, wardrobe, opie technology company and love of the company's products is 11 classes of electrical products, two kinds of the product itself is not the same, there is no grab market share. It can be seen that the judgment in the first instance completely protected Europa company by subjective imagination in the case of ignoring the facts. 5. The trademark and the name of the company being sued on the products involved in this case were legally obtained, and the standardized use method was enough to enable the relevant public to clearly distinguish the product source, without causing any confusion and misidentification, and without causing any unfair competition to OPai. Ii. The judgment of the first instance concluded that the products involved were jointly produced and sold by Opai Technology And Epda and should bear the joint responsibility, which was wrong. 1. Opie technology company, in the case only "OPAICN" registered trademark authorization act no. 12124262, no authorization is v. enterprise name using other behaviors, such as the original defendant's company be authorized to legally use the registered trademark of the other 12124262 behavior has nothing to do with European technology companies, shall not be liable jointly by the European science and technology company. 2. The judgment of the first instance found that the outer package and publicity materials of the accused product were marked with the words "Guangdong Opai Technology Co., LTD. (Supervision)", and Opai Technology Company did not provide refuting evidence, so it was wrong to assume that the product involved was jointly produced and sold by Epda and Opai Technology Company. On this case, in addition to product packaging and promotional materials with a European technology companies outside the enterprise name, the company did not submit any evidence to prove that the accused of the products involved in the enterprise name used is opie technology company authorized it for use, and the enterprise name of general information, even without the opie technology company authorized, can be others to learn and use. Therefore, the judgment in the first instance disregarded the statement of Opie Science and Technology Co., Ltd. without any actual evidence submitted by Opie. Based on the use of general information, it was determined that the name of the accused company was authorized by Opie Science and Technology Co., Ltd. and that the products involved were produced and sold jointly by Opie Technology Co., LTD. In the case that Opie has not submitted any actual evidence to prove that opie has authorized the use of the name of the accused enterprise, opie has not assumed the prior burden of proof. In the case that Opie has not provided any prior evidence, there is no need to provide rebuttal evidence. Therefore, the original judgment on this point is wrong. 3. The admissibility of the evidence and the misdetermination of the facts in the judgment of the first instance. The notarial Certificate No. 350 in opie's opinion on Evidence Determination 1 is the trademark registration certificate on the product of Category 20, which has nothing to do with the product of category 11 involved in this case. It is wrong for the judgment of the first instance to accept the evidence and consider it relevant. 3.4.5.6 All the evidences of Opie in category 20 wardrobe and cabinet products have nothing to do with category 11 products involved in this case. It is wrong to adopt the above evidences and consider them to be relevant in the original judgment; At the same time, the original decision on the basis of the above evidence to prove that the company in the case have to prohibit the accused the popularity of enterprise name used is a serious mistake, the evidence can prove the above company in 20 class cabinet lamp on the product and the industry has the fame, but I could not prove that the company in case of 11 kind of household electrical appliances product and industry have high visibility, and the degree of awareness has been as high as to prohibit others to use. 3. The judgment in the first instance made a mistake in opinion 1 on the evidence of Opie Technology Co., LTD. The trademark certificate just proves that the trademark and enterprise name used on the products involved are different from those of Opie Technology Co., LTD. Can point to the product source on commodities not only just business name, it is more important and trademarks, and used in the case of no. 12124262 is a registered trademark and the company logo is totally different, only the trademark was enough to get the relevant public to distinguish the product is not involved in the European products, coupled with the alleged enterprise name with the company enterprise name is completely different, the product belongs to category of goods and industry is different, involved in products on the market doesn't cause consumer confusion may cause misidentification, less likely to form of unfair competition. Therefore, the facts proved by the trademark certificate are relevant to the case, and it is wrong for the court of first instance not to admit them. 4. The judgment in the first instance is wrong in opinion 2 on the evidence of Opie Technology. European technology companies evidence that part of the company is approved in the trial is real, and the part of the evidence of the content is closely related to the case, this is some evidence that European company in the market is not the only point to the word "European" and has the very high popularity, opie electric cars is number one in the country, opie wooden door is zhejiang famous trademark, the pie is one of the ten national household floor, floor opie washing machine is the household electrical appliance industry in the only "European" there is a famous brand, the market already have more than one set the enterprise name and the trademark coexist, European companies in its 20th in the household goods industry is not the only, in 11 type of household electrical appliances industry is more involved with no practical use and popularity, in the real situation, the company is not required to completely prohibit others to use on the product very high popularity and the "European" words, the uniqueness of one to one correspondence cannot ban of the use of the enterprise name. Therefore, the evidence of this part of the evidence is closely related to the case, the court of first instance did not recognize that it is wrong and extremely unfair to Opie technology company. Iv. The original judgment that Opai Technology company and Epda company constitute unfair competition and should compensate 100,000 YUAN is wrong. Opie technology and Epda have not engaged in unfair competition and shall not be liable for damages. Even if unfair competition must be found, the amount awarded is too high. The 30,000 yuan lawyer's fee of Opai company has not submitted any evidence, and the product involved is only identified as a gas stove, even if the infringement, the quantity is not large, the unit price is not high, and the name of the accused company is approved by the Industrial and Commercial Bureau, except the use of the name of the accused company, this case has no other infringement behavior. Therefore, Opai Technology Company and Epida Company are legally used, and it is really helpless to be judged for infringement. The circumstances are not serious, and the court of first instance did not have any actual loss or profit evidence, so the court of first instance decided that the compensation of 100,000 yuan is too high in both case and reason. To sum up, in the original judgment, the facts were wrong, the evidence was wrong, opie technology and Epda did not have any unfair competition, and shall not bear any responsibility. The judgment in the first instance is obviously unfair and wrong. We request the court of second instance to withdraw the judgment in the first instance and revise the judgment to reject all the lawsuit claims of Opai company according to law.

    Opie failed to appear for questioning after being legally summoned, but filed a written defense, saying it requested the court of second instance to dismiss the appeal and uphold the original judgment. I. Opie has a competitive relationship with Opie Technology And Epda, and the behavior of Opie Technology constitutes unfair competition. 1. Opie's business scope includes the manufacturing of household kitchen appliances, while opie Technology Co., Ltd. and Epda Co., Ltd. also cover the business scope of household appliances. They are competitors in the same industry and have competitive relations with each other. 2. "Europe" is the company name of the font size, and European companies to use the trademark, the company is the domestic famous furniture production enterprise, on the 20th of the sideboard, "European" trademark by the trademark office as a well-known trademark, the enterprise also received a lot of glory, and in the CCTV, hunan TV station and a variety of print media advertising, a large amount of advertising fee, visible "European" series of products as well as the "European" font size across the country have high visibility, and by the relevant public know the company's prior rights protected. European technology companies in the production and sales of the products, packaging, manuals etc using word "guangdong opie technology co., LTD.", easy to make the relevant public source for products cause confusion and mistakes, damage the lawful rights and interests of the company, the behavior of the European technology companies clearly violated the relevant laws and regulations, in violation of the recognized business ethics in the market transaction, violated the company's right to enterprise name, belongs to the ACTS of unfair competition. The court of first instance found correct. Ii. The court of first instance finds that opai Technology Company and Epda Company jointly performed the correct production behavior and shall jointly assume the liability for compensation. The outer packing and operating instructions of the products accused of infringement are marked with the words "Guangdong Opai Technology Co., LTD. (supervisor), manufacturer: Zhongshan Apida Electric Appliance Co., LTD.", and the company name of Opai Technology Co., Ltd. is marked on the panel, manual, certificate and warranty card of the gas stove. Moreover, as shown in the notarial certificate, the information about the production enterprise of Opie Technology Company in many publicity brochures obtained from Epda has the function of enabling consumers to identify the producer or operator of the product, that is, it clearly points to the nature of the provider of the product. Therefore, without rebuttal evidence provided by Opie and Epda, EpDA holds that the alleged infringing products are jointly produced and sold by opie and EpDA. Iii. The amount awarded by the court of first instance is reasonable. The court of first instance decided the amount of compensation according to the facts and legal basis, taking into account the brand awareness of Opai, the business scale of the infringer, the nature, period, consequences and degree of subjective fault of the infringer's infringement, and the reasonable expenses paid by Opai to stop the infringement. To sum up, the court of first instance determined that the facts were clear and the law was correctly applied. Opie's appeal was groundless and requested the court of second instance to reject the appeal and maintain the original judgment.

    Legally summoned, Epda failed to appear for questioning and to file a written plea.

    Opai filed a lawsuit in the first-instance court: 1. Epda and Opai Technology Immediately stop the production and sale of range hoods and gas stoves marked with the words "Guangdong Opai Technology Co., LTD."; 2. 2. Aptech and ApTECH shall compensate APTECH for economic losses and reasonable expenses of 500,000 YUAN.

    The court of first instance finds that Opai was founded on July 1, 1994 with a registered capital of RMB 373581,112. Its business scope: furniture manufacturing industry.

    Opai is the holder of the registered trademarks no. 4378572, no. 1137521, No. 1128213 and No. 7731876 "OPPEIN" of Class 11 and Class 20 approved for use. The approved commodities include gas stoves and kitchen range hoods.

    On April 24, 2009, the Trademark Office of the State Administration for Industry and Commerce recognized the trademark of "Opai" on the sideboard of category 20 of the International Classification of Goods and Services as a well-known trademark. In September 2007, the state administration of quality supervision, inspection and quarantine set awarded to the company's brand household cabinet for "China famous brand product". In October 2008, Guangdong Provincial Bureau of Quality and Technical Supervision granted Opai's cabinet products as guangdong famous brand products. In February 2008, "Opai" trademark was recognized as "Famous trademark of Guangdong Province" by Guangdong Famous Trademark Recognition Committee. In December 2012, Opai was identified by China Building decoration Association hutch and sanitation Engineering Committee as "2012 China hutch and sanitation top 100" "overall kitchen leading enterprises top 10", effective term of a year. In September 2013, The Guangzhou Municipal People's Government awarded Opai the title of "2012 Guangzhou Mayor Quality Award". On December 28, 2014, the case evaluated by Brand Watch magazine was selected into the silver Award of 2014 Annual Brand Marketing Case in China. In January 2015, Guangdong Home Furnishings Federation and Guangdong Furniture Chamber of Commerce jointly awarded Opai the title of "Top 10 Most Valuable Brands" and "Top 10 Innovative Enterprises" in 2014 guangdong pan-household industry.

    On October 30, 2012, opai signed an agreement with Beijing ontime boiling international advertising co., ltd. on the sponsorship and cooperation of home decoration fund. It was agreed that opai would sponsor two sets of "exchange space" home decoration fund of CCTV. The contract was performed from January 5, 2013 to December 28, 2013. On July 20, 2013, Opai hired Jiang Wenli as its spokesperson. On November 11, 2013, opai signed a TV advertisement release contract with zhejiang zhimei chewen advertising co., LTD. It was agreed that opai entrusted zhejiang zhimei chewen advertising co., ltd. to release the advertisement during January 1, 2014 solstice on December 31, 2014, with the media of cctv-news channel, and the cost was RMB 40463970. In July 2014, the company with hunan, hunan radio and television advertising corporation downwind media co., LTD., television advertising project contract, agreed: the company commissioned in hunan province, hunan radio and television advertising corporation downwind media co., LTD., published "the 10th golden eagle festival closing ceremony and awards" project related advertising, distribution medium for hunan broadcast hunan satellite TV channels, release time is on September 28, 2014 to October 12, 2014, cost $18000000, using the slogan of "there is love, there's a, have the pie". On October 22, 2014, Europa signed an advertising agency contract with kashgar yinsong culture & media co., LTD. It was agreed that Europa culture & media co., ltd. would act as an advertising agency for Europa on cctc-news "global view" on January 1, 2015 and December 31, 2015. The agreed fee was 23,970,000 yuan. On November 27, 2014, opai signed an agreement with Beijing ontime boiling international advertising co., ltd. on the sponsorship and cooperation of home decoration fund. It was agreed that opai would sponsor two sets of home decoration fund of CCTV "exchange space". The contract was performed from April 4, 2015 to March 26, 2016 with the sponsorship advertising fee of RMB 6,000,000.

    Epda Company was established on May 11, 2015. It is a limited liability company with a registered capital of 500,000 yuan. Its business scope includes production, processing and sales of household appliances, kitchen appliances and hardware products. The enterprise nature of European science and technology company is a limited liability company (natural person sole proprietorship), April 30, was founded in 2014, the registered capital of 10 million yuan, scope of business of biotechnology products, household appliances, metal products, electrical accessories, water purification equipment, air to water heaters, bathroom supplies, daily necessities, household items, electrical materials, electronic products research and development, processing, manufacturing, sales, etc.

    On March 17, 2016, Opai Applied to Fengcheng Notary Office in Laiwu city, Shandong Province for evidence preservation. On the same day, in the notarization two notaries, under the supervision of the entrusted agent of the company's shou-zhen wang came in the name of ordinary buyers lies in dongfeng town, zhongshan city xing chang JiChang village on the second floor of the east road number 43 dongfeng town, zhongshan city of "love's da electric appliance co., LTD.", shou-zhen wang for the price of 1066 yuan to buy the kitchen burning gas, oil absorption one, two and staff the payment receipt issued by a card, two copies, the catalog of product promotion brochures, kitchen burning gas labeling four pieces. The notary affixed the seal of the notary office to seal the purchased gas stove and range hood, and after sealed, the originals, such as brochures, receipts, labels and so on, will be kept by Wang Shouzhen. For this reason, Fengcheng Notary Office of Laiwu City, Shandong Province issued the notary Certificate of Laifeng City Minzi No. 433 (2016) to the above facts. The notarial certificate shows that the purchased range hood outsourcing box has the words "OPAICN", "Guangdong Opai Technology Co., LTD. (Supervisor)" and "Manufacturer: Zhongshan Apoda Electric Co., LTD., Address: Partner Industrial Park, Xingchang Road, Dongfeng Town, Zhongshan City, Tel: 0760-87×× 8, Fax: 0760-87×× 9" printed on it. Brochure was on the cover of "opie OPAICN guangdong science and technology co., LTD.", the inside pages for the product display, each left upper corner of the inside pages are printed with the word "guangdong opie technology co., LTD.", was on the back cover "zhongshan's da electric appliance co., LTD., address: partner dongfeng town, zhongshan city xing chang road industrial park, telephone: 0760-87 - x x x 8, fax: 0760-87 * * * 9" information.

    After trial inspection, the gas stove purchased by the notarization is sealed in good condition, and the seal and seal of the notary office are complete; Lampblack machine product has four notary office to add the seal, but three of the seal has been completely broken. After the trial opened the evidence preservation of gas stove evidence, there are gas stove with 1 set, use instructions and product security warranty card, security certificate each 1. The packaging box of the product is marked with "Guangdong Opai Technology Co., LTD. (Supervisor), Manufacturer: Zhongshan Apoda Electric Co., LTD., Address: Partner Industrial Park, Xingchang Road, Dongfeng Town, Zhongshan city, Telephone: 0760-87×× 8" and other words. The OPAICN Guangdong Opai Technology Co., LTD. (Supervisor) is marked on the panel of the gas cooker. The product anti-counterfeiting guarantee card and anti-counterfeiting certificate are marked with the words "Guangdong Opai Technology Co., LTD. (supervision)"; The OPAICN and Guangdong Opai Science and Technology Co., LTD. Are marked on the front cover, and the OPAICN and Apo Electronics Co., LTD., Zhongshan City, Address: Partner Industrial Park, Xingchang Road, Dongfeng Town, Zhongshan City, Phone: 0760-87×× 8, Fax: 0760-87×× 9. The information printed on the outsourcing box of range hood products with evidence preservation is consistent with the contents shown in the (2016) Lifengcheng Certificate No. 433 Notarial certificate. There is one range hood, one operation manual, one anti-counterfeiting guarantee card and one anti-counterfeiting certificate. The information marked by the panel, instruction manual and product anti-counterfeiting guarantee card and anti-counterfeiting certificate of the range hood is consistent with the information marked by the evidence of the gas stove above.

    In the trial, Oppa stated that it only authorized Epda to use the registered trademark of "OPAICN" and did not authorize it to use the business name. Opie company claims love company general, European technology companies to compensate for the loss of 500000 yuan (including reasonable expense for to stop the infringing act), and called to stop the infringing act, reasonable costs including attorney's fees and spending $30000 cost of the infringing products, notarial cost 2000 yuan, buy 1066 yuan to 2000 yuan, travel, but it only provides the documents to the cost of purchases infringing products. Opal, Aptech and Opal Technologies have failed to provide evidence on the amount of losses incurred by Opal and the profits made by opal and Apal.

    The court of first instance held that the focus of the dispute in this case is: 1. Whether the products involved are jointly produced and sold by Epda and Opie; 2. 2. Whether Epda and Opie technologies constitute unfair competition; 3. Subject and amount of compensation.

    On the first point of focus. The sealed state of gas stoves involved in the case provided by Opie is intact, and the seal and seal of the notary office are complete, which shall be confirmed. The company to provide products involved in oil absorption, although its outer packing and the word no. 433 (2016) lai FengCheng card people notarial deed shows evidence of evidence preservation buy appearance consistent, but according to the first-instance court review, labeled with the notarization of seal on the product three fracture, has been completely evidence exists serious defects, the first-instance court for European companies to provide oil absorption products will not be involved. The gas stove product accused of infringement is labeled on the packaging and operating instructions of the manufacturer epda Company, product packaging and products, product security warranty card labeled "Guangdong Opai Technology Co., LTD. (supervision)". In addition (2016), the contents of the Notarial Certificate No. 433 of Laifeng City Certificate show that the cover of the product promotion album and the inside page of the product display obtained by Opai from Epida company are marked with the contents of "Guangdong Opai Technology Co., LTD. (supervision)". The trade documents such as production enterprise information, product anti-counterfeiting and warranty card, operation manual and so on marked in the outer package have the function of enabling consumers to identify the producer or operator of the product, that is, they clearly point to the provider of the product. Accordingly, without providing rebuttal evidence, Epda and Opie technologies jointly produced and sold the gas stoves that were accused of infringement.

    On the second point of focus. Opai contends that the labeling of gas stove products accused of infringement as guangdong Opai Technology Co., Ltd. constitutes unfair competition for the right to its enterprise name. According to paragraph 3 of article 5 of the anti-unfair competition law of the People's Republic of China, "business operators shall not engage in market transactions by the following unfair means to harm competitors :(3) unauthorized use of another person's enterprise name or name to mislead others into believing that it is another person's commodity". In this case, the company name since 1994, cabinets and other products on "European" font size, the continuous use in the class the sideboard 20 "European" trademark by the trademark office identified as well-known trademarks, its enterprise also won many honors, European companies and in CCTV, hunan TV and other media to a lot of advertising and product sales, the company of "European" enterprise size across the country have high visibility, the company's prior rights by "general principles of the civil law of the People's Republic of China" and "anti-unfair competition law of the People's Republic of China". Epda and Opie Technologies inc., whose business scope includes household appliances, compete with opie. Love company, European science and technology company collective production and sales of kitchen burning gas mark on the product, outer packing and trading documents "guangdong science and technology co., LTD.", will cause the relevant consumers for European science and technology for European companies affiliated enterprise, easy to make the relevant public source for products cause confusion and mistakes, free-ride deliberately is obvious. Epda and Opie technologies have taken the market share of Opie, which obviously violates the principle of good faith and violates the recognized business ethics in market transactions, and constitutes unfair competition for Opie. Therefore, Epda and Opie Shall immediately stop the infringement and compensate Opie for its economic losses and reasonable expenses incurred to stop the infringement.

    On the third point of focus. The parties failed to provide evidence for love's company, European technology companies implementing ACTS of unfair competition and lead to the company by the actual losses and love company, European science and technology company's profitability, considering the company's brand awareness and love company, European science and technology company's scale of operation, love's company, European technology companies during the implementation of the nature of the infringement, c -, consequences, and the degree of subjective fault, performance, the company and entrust a lawyer to appear in court to stop infringement litigation or spending the notarial fees, the cost of buying infringing material, Apda and Opie Technologies shall pay to Opie AN indemnity of $100,000 (including reasonable expenses for the prevention of infringement).

    In accordance with the "general principles of the civil law of the People's Republic of China, paragraph 2, of the first paragraph of article one hundred and thirty-four of the People's Republic of China against unfair competition", to in paragraph 3, article 5 of the Supreme People's Court on the trial of civil cases of unfair competition "the explanation of application of law in article 1 and article 4, paragraph 1 of article 6, article 7, paragraph 1 of article 17, the civil procedure law of the People's Republic of China, article sixty-nine and article one hundred and forty-four of the first paragraph of article sixty-four of the act, the judgment by default: I. Epda and Opai Technology Shall immediately stop the production and sale of gas cooking utensils marked with the words "Guangdong Opai Technology Co., LTD" on the date when the judgment takes legal effect; 2. Epda and Opai Technologies shall pay AN indemnity of RMB 100,000 yuan (including reasonable expenses for preventing infringement) to Opai within 5 days after the judgment takes effect; Iii. Rejecting other claims of OPai. The case handling fee is 8,800 yuan, 1,760 yuan for Opai and 7,040 yuan for Epda and Opai Technology.

    During the second trial, no new evidence was submitted by Epai and Epda. European technology companies submitted (2017), guangdong shunde no. 33763 is notarial deed, intends to prove that opie ronggui, shunde district, foshan city, the local of science and technology company is a good neighborhood, litchi pond road 22, no. 313 on the third floor of the six, the workplace is a commercial and office, not in the production of home appliance equipment, no electrical appliances production workshop, and other home appliances production conditions, only office buildings, production products not European technology companies involved. As for the evidence 1 submitted by Opie Technology, it is notarial certificate, which is accepted by the court.

    The facts ascertained by the court of first instance are basically clear and confirmed by the Court.

    The court holds that: based on the pleading of both parties, the focus of the dispute in the second trial of this case is: 1. Ii. Whether the use of the words "Guangdong Opai" and "Guangdong Opai Technology Co., LTD" by Opai Technology on the products accused of infringement constitutes unfair competition; Whether the amount of compensation awarded in the first instance is reasonable.

    The first focus of the dispute is whether opai technology and Epda jointly produce and sell the infringing goods. First, after the court of first instance in court inspection, the infringement of the gas stove is marked on the outer packing box "Guangdong Opai Technology Co., LTD. (supervision), manufacturer: Zhongshan Apoda Electric Co., LTD., address: Zhongshan Dongfeng Town Xingchang Road Partner Industrial Park". Cooker panel marked with "opie OPAICN guangdong science and technology co., LTD. (producer), product security guarantee card, security certification mark" opie technology co., LTD. (producer) of guangdong province ", the cover of the instruction manual annotation "OPAICN" word "guangdong opie technology co., LTD." and "zhongshan's da electric appliance co., LTD., address: partner dongfeng town, zhongshan city xing chang road industrial park, telephone: 0760-87 - x x x 8, fax: 0760-87 * * * 9", the above information are pointing to the European technology companies and love company. Second, European science and technology of the company's business scope includes household appliances manufacturing, sales, although the evidence submitted in a second trial defense office property does not have its premises is site required for the production of household appliances, but given the evidence is the single production, and enterprises have the nature of the administrative office office buildings, at the same time also has a production workshop or entrust other production is a widespread social phenomenon, do not prove this European technology companies not involved in electrical production capacity. According to the preponderant evidence, the first-instance court found that there was nothing wrong with the joint production and sale of the accused infringing goods by Opai Technology And Epda, which the Court upheld.

    The second focus of the dispute is whether opai's use of the words "Guangdong Opai Technology Co., Ltd." on the product of the alleged infringement constitutes unfair competition. According to the provisions of Paragraph 3 of Article 5 of the Law of the People's Republic of China against Unfair Competition, if an enterprise name of another person is used without authorization to cause people to mistake it for another person's goods, it shall be an act of unfair competition and shall bear the corresponding legal liability. And according to the Supreme People's Court on the trial of civil cases of unfair competition "the explanation of application of law in the first paragraph of article 6 of regulations, has certain market popularity and is known by the relevant public enterprise name of the font size, can be regarded as provided in item (3) of article 5 of the anti-unfair competition law" enterprise name ". The name of this case is "Guangdong Opai Technology Co., LTD.", and the enterprise name requested for protection is called "Opai" in "Opai Home Furnishing Group Co., LTD.", namely the problem of right conflict between the enterprise name rights. Due to the regional limitation of enterprise name approval, the conflict between names is inevitable, and the general principle of legal protection is to enjoy the corresponding enterprise name right in their approved area. However, if the shop name has certain market popularity and is known to the relevant public, the conflict is enough to cause the relevant public to have confusion about the source of the goods, and it can be considered as unfair competition. According to this case to find out the fact that, although the "guangdong opie technology co., LTD." is the administrative department for industry and commerce approved the establishment of legitimate businesses, shall enjoy the right of an enterprise name in accordance with the law, but the company was established in April 30, 2014, and the company was established in July 1, 1994, of its relative to the alleged infringing European science and technology enterprise name belongs to the prior right of the company. Text at the same time, "Europe" is the company name of the font size is also the company has a registered trademark, after the company of "European" trademark use, advertising for many years, and have a good product quality and business reputation, the company name and registered trademark in the relevant public have a higher visibility and influence, have "has certain market popularity and is known by the relevant public" conditions, the company size of rights by the law of the People's Republic of China against unfair competition, protection. European technology companies in the same or similar products, should be some cognition of "European" trademark and font size, its use on commodities with the wording "European" "guangdong science and technology co., LTD." when an enterprise name, obvious ability to use the subjective intent of the reputation of the font size to carry out business activities, system of "European" well-known enterprise size grows, objectively can make consumers confused in the kitchen burning gas products of operators, as mark of "guangdong science and technology co., LTD." products may come from the company, or that there is investment or cooperation relationship between both sides, In this way, the consumer group belonging to Opai may flow to opai technology home furnishing company and obtain improper commercial interests, thus damaging the legitimate rights and interests of OpAI company. Therefore, opai's use of the words "Guangdong Opai Technology Co., Ltd." on the infringing products has constituted unfair competition.

    The third focus of the dispute is about the amount of compensation. Because the company failed to provide evidence for European science and technology company, love's implementation of ACTS of unfair competition and lead to its actual losses and European technology companies, love the company's profitability, the first-instance judgment, considering the European company's brand awareness, as well as the European science and technology company, love the company's operating scale, European science and technology company, love of the nature of the implementation of the infringement, period, consequences, and the degree of subjective fault, the company to stop tort lawyers, notary fees, incurred by the factors such as the cost of buying infringing material, To the credit of Opie Technologies and Epda, the payment of an indemnity of 100,000 YUAN (including reasonable expenses for the prevention of infringement) to Opie is legally justified. Therefore, the Court does not support the appeal.

    To sum up, the appellant opai Technology's appeal cannot be established and should be rejected; The facts ascertained in the judgment of the first instance are basically clear and the application of the law is basically correct, which should be maintained. In accordance with the provisions of paragraph 1, Article 170 of the Civil Procedure Law of the People's Republic of China, the judgment is as follows:

    Dismiss the appeal and maintain the original judgment.

    The handling fee of the second instance case is 8,800 yuan, which shall be borne by the Appellant Guangdong Opai Technology Co., LTD.

    This judgment shall be final.

    Xu Hongni, chief judge

    Judge Xie Jindong

    Judge Ma Yan

    January 23, 2008

    Clerk Lei Yuan